Wells v Mexted

[2022] NSWDC 20

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Wells v Mexted [2022] NSWDC 20

Hearing dates:

17, 18, 19 November and 10 December 2021

Date of orders:

15 February 2022

Decision date:

15 February 2022

Jurisdiction:

Civil

Before:

Strathdee, DCJ

Decision:

(1)   Judgment for the Defendant.

(2)   I order the plaintiff pay the defendant’s costs as agreed or assessed. I grant liberty to the parties to apply to my associate within 14 days should any other costs order be sought.

Catchwords:

LIMITATIONS – knowledge of occurrence and cause of injury – knowledge that injury sufficiently serious to justify bringing action – what steps did the plaintiff take – what constituted reasonable steps

NEGLIGENCE – assault and battery – fight amongst neighbours – inconsistent versions provided by plaintiff – inconsistent evidence at trial by plaintiff and defendant

TORTS – damages – assessment of loss

Legislation Cited:

Civil Liability Act 2002 (NSW)

Limitation Act 1969 (NSW)

Cases Cited:

Baker-Morrison v State of NSW [2009] NSWCA; (2009) 74 NSWLR 454

Best v Rosamond [2020] NSWCA 90

Heydon v NRMA Ltd (2000) 51 NSWLR 1

State of NSW v Gillett [2012] NSWCA 83

Category:

Principal judgment

Parties:

Janet Louise Wells (Plaintiff)
Kevin Mexted (Defendant)

Representation:

Counsel:
Mr B McNanamey (Plaintiff)
Mr J Pearson (Defendant)
Solicitors:
Mr G Whiffin, Taylor & Scott (Plaintiff)
Mr W Allan, CCC Law Pty Ltd (Defendant)

File Number(s):

2018/00289971

Publication restriction:

None

Judgment

INTRODUCTION

1. By a Statement of Claim filed 21 September 2018 the plaintiff seeks damages (including general damages, aggravated damages and exemplary damages for battery), interest and costs from the defendant consequent upon an incident alleged to have occurred on 23 September 2012.

2. At that time the plaintiff resided at 13 Holloway Drive, Jilliby in the State of New South Wales and the defendant resided at 15 Holloway Drive, Jilliby.

3. The plaintiff claims that on 23 September 2012, whilst she was attempting to retrieve her dog, Billy, a Bichon Frise, which had strayed onto the defendant’s property, she was subjected to assault and battery by the defendant.

4. The plaintiff alleges that this incident has resulted in her suffering, and that she will continue to suffer injury, loss and damage. The particulars of the alleged assault and battery purported by the defendant are as follows:

1. Speaking in an aggressive manner, causing the plaintiff to fear for her safety and anticipate physical harm;

2. Swearing and yelling, causing the plaintiff to fear for her safety and anticipate physical harm;

3. Physically leaning over the plaintiff, causing her to fear for her safety and anticipate physical harm;

4. Preventing the plaintiff from exiting from the defendant’s property, causing her to fear for her safety and anticipate physical harm; and

5. Striking the plaintiff across her back, causing her to fall forwards.

5. In a Defence filed 11 June 2019, the defendant pleads that the plaintiff was trespassing on his property to collect her dog that was attacking his livestock, and that after he directed her to leave his land, which she did not do,…